An Important Maori Land Settlement — But Where’s the Treaty Itself?

The BBC reports that the New Zealand government and seven Maori tribes have entered into an historic agreement concerning Maori ownership of a number of forests in the North Island, where I live:

The NZ$420m ($319m) agreement transfers ownership of nine forests – covering 435,000 acres (176,000 hectares) of land – in the central North Island.

Hundreds of Maori, some in traditional dress, thronged parliament to witness the signing of the accord.

“It’s a historic journey we are on,” Prime Minister Helen Clark said.

“We came into politics to address injustice and seek reconciliation. Thank you for walking that road with us on this historic day,” she added, according to AP news agency.

The settlement – the largest single deal between the government and Maori tribes – seeks to address grievances dating back to the 1840 Treaty of Waitangi.

The treaty guaranteed the indigenous Maori people use of their land and resources in return for ceding sovereignty to the British crown. But land seizures and ownership breaches followed.

The forests signed over are mainly large commercial pine plantations, generating about NZ$13m a year in rents.

The settlement also hands over rents that have accumulated on the land since 1989.

Between them, the seven tribes or iwi include more than 100,000 members. They will manage the land collectively, setting up a holding company structure and forestry management structure.

The agreement, known as the “Treelords” deal — echoing the very controversial 1992 Sealords deal, which ultimately led the New Zealand Parliament to extinguish all Maori claims to commercial fishing rights — is indeed historic. I would take issue, though, with the article’s claim that the Treaty of Waitangi “guaranteed the indigenous Maori people use of their land and resources in return for ceding sovereignty to the British crown.” That interpretation is consistent with the English version of the Treaty — but not with the Maori version. (The two versions were drafted separately, and the English version is not a translation of the Maori, even though the Maori version was drafted first.)

Here is Article 1 of the Treaty in English:

The Chiefs of the Confederation of the United Tribes of New Zealand and the separate and independent Chiefs who have not become members of the Confederation cede to Her Majesty the Queen of England absolutely and without reservation all the rights and powers of Sovereignty which the said Confederation or Individual Chiefs respectively exercise or possess, or may be supposed to exercise or to possess over their respective Territories as the sole Sovereigns thereof.

I have bolded the operative terms. The problem is that kawanatanga does not mean “sovereignty”; it means “governance” — a much weaker term. Indeed, it is clear that the Maori did not intend to cede anything resembling sovereignty to the Queen, given that the Maori version of the Treaty does not use the Maori word for “sovereignty,” kingitanga, or even the Maori word for “independence,” rangatiritanga.

Just as important, the British had to have known that the Maori did not intend to cede sovereignty to the Queen. In 1835, the British and the Maori had signed the Declaration of Independence, in which the British guaranteed that the Maori chiefs would maintain sovereignty over their land. The Declaration made use of all three of the words that are at the heart of the dispute over the Treaty, with the British translating rangatiritanga as “independence,” kingitanga as “sovereign power and authority,” and kawanatanga as “functions of government.” How then could the British have honestly believed a mere five years later — with many of the same British officials present at the signing of both documents — that Article 1’s use of the term kawanatanga, as opposed to kingitanga, meant that the Maori were giving up their sovereignty?

Regardless, the question is now moot — New Zealand courts have long since given up trying to determine the “true” meaning of the Treaty. Now they — and the Waitangi Tribunal, which makes recommendations to the government concerning Maori grievances — simply apply the so-called “Treaty Principles”:

The principle of government or the kawanatanga principle

Article 1 gives expression to the right of the Crown to make laws and its obligation to govern in accordance with constitutional process. This sovereignty is qualified by the promise to accord the Māori interests specified in article 2 an appropriate priority. This principle describes the balance between articles 1 and 2: the exchange of sovereignty by the Māori people for the protection of the Crown. It was emphasised in the context of this principle that ‘the Government has the right to govern and make laws’.

The principle of self-management (the rangatiratanga principle)

Article 2 guarantees to Māori hapū (tribes) the control and enjoyment of those resources and taonga that it is their wish to retain. The preservation of a resource base, restoration of tribal self-management, and the active protection of taonga, both material and cultural, are necessary elements of the Crown’s policy of recognising rangatiratanga. The Government also recognised the Court of Appeal’s description of active protection, but identified the key concept of this principle as a right for iwi to organise as iwi and, under the law, to control the resources they own.

The principle of equality

Article 3 constitutes a guarantee of legal equality between Māori and other citizens of New Zealand. This means that all New Zealand citizens are equal before the law. Furthermore, the common law system is selected by the Treaty as the basis for that equality, although human rights accepted under international law are also incorporated. Article 3 has an important social significance in the implicit assurance that social rights would be enjoyed equally by Māori with all New Zealand citizens of whatever origin. Special measures to attain that equal enjoyment of social benefits are allowed by international law.

The principle of reasonable cooperation

The Treaty is regarded by the Crown as establishing a fair basis for two peoples in one country. Duality and unity are both significant. Duality implies distinctive cultural development while unity implies common purpose and community. The relationship between community and distinctive development is governed by the requirement of cooperation, which is an obligation placed on both parties by the Treaty. Reasonable cooperation can only take place if there consultation on major issues of common concern and if good faith, balance, and common sense are shown on all sides. The outcome of reasonable cooperation will be partnership.

The principle of redress

The Crown accepts a responsibility to provide a process for the resolution of grievances arising from the Treaty. This process may involve courts, the Waitangi Tribunal, or direct negotiation. The provision of redress, where entitlement is established, must take account of its practical impact and of the need to avoid the creation of fresh injustice. If the Crown demonstrates commitment to this process of redress, it will expect reconciliation to result.

The Treaty Principles are important, and they do occasionally protect Maori interests. But their importance cannot obscure the fact that the Treaty itself still has no formal legal status in New Zealand, making Maori interests subject to the whims of Parliament. And that’s no accident: taking the Treaty seriously would mean taking the Maori version of the Treaty seriously — and taking the Maori version seriously would mean that deals like Treelord would be the very tiny tip of a very large iceberg.

One Response

Kevin,

All of this is very interesting and there’s much to compare here with the situation of Native American Indians in North America (Turtle Island). Now while it is true, as you say, that “the Treaty itself still has no formal legal status in New Zealand,” I’d like to know what you think of the status of such treaties from the perspective of the international community and international law.

For instance, S. James Anaya writes that

“Even if not of the same character as interstate treaties, agreements with indigenous peoples increasingly are acknowledged to be matters of international concern and hence, in their own right, can be said to have international character. This is evident particularly in the 1989 U.N. Economic and Social Council resolution mandating a study on ‘treaties, agreements and other constructive arrangements between States and indigenous populations.’ The special rapporteur who was charged with the study, Miguel Alfonso Martinez, issued a report with an extensive evaluation of the role of treaties and agreements in the history and contemporary lives of indigenous peoples, pointing out numerous problems of noncompliance and recommending a series of domestic and international measures to address these problems. In addition, in its resolution ‘on Action Required Internationally to Provide Effective Protection for Indigenous Peoples,’ the European Parliament called upon states ‘in the strongest possible terms’ to honor treaties signed with indigenous peoples and expressed support for the U.N. treaty study. Accordingly, agreements between indigenous peoples and states…have been recurrent subjects of discussion in the meetings of international institutions in which indigenous issues are addressed.”

Secondly, I trust you agree with Anaya’s statement that “A special, affirmative duty under international law enjoins states to adopt the measures necessary, through their various competent institutions, to give practical meaning to indigenous peoples’ rights.”

Finally, I’m curious as to what you think about Allen Buchanan’s proposal “for developing international legal rights to intrastate autonomy for indigenous peoples.” He offers this proposal by way of getting around the recalcitrant fact that the right of self-determination has historically entailed the right to form a separate state and thus international law “does not currently recognise the right to freedom [i.e., self-determination of ‘peoples’] of indigenous peoples because of secession implications” (Paul Keal). As you many know, he provides the following reasons for granting such rights:

“First, the creation of intrastate autonomy regimes for indigenous peoples can be required as a matter of rectificatory justice, in order to restore the self-governance of which these peoples were deprived by colonization. Second, intrastate autonomy can provide a non-paternalistic mechanism for protecting indigenous individuals from violations of their individual human rights and for counteracting the ongoing detrimental effects of past violations of their individual human rights or those of their ancestors. Third, it may be necessary to establish or augment institutions of self-government for indigenous groups in order to implement settlement of land claims in cases where lands that were held in common were lost due to treaty violations. Fourth, rectificatory justice can require measures to protect indigenous peoples from the detrimental effects of the disruption of the indigenous customary law that defined and supported their ways of life. However, the best remedy may not be to incorporate indigenous customary law into the state’s legal system. Instead, equipping indigenous peoples with powers of self-government that include the right to make new laws for themselves better accords with the fact that their cultures are dynamic and should not be frozen by attempts to restore customary law that no longer best serve their interests.”

Of course all of this is bound up with recognizing that sovereignty is not an “all-or-nothing” affair (i.e., with regard to the set of powers, claim-rights, liberties, and immunities that have traditionally defined sovereignty), that there are, for instance, degrees and types of sovereignty, that the meaning of sovereignty has, legally and otherwise, been subject to historical change, that in today’s world it makes little sense to characterize nation-states as the sole loci of the exercise of political and legal sovereignty owing to institutionally organized and politically legitimate sub-nation-state legal entities on the one hand, and their counterpart supra-state entities on the international and global plane.

[I’ll not here cite the relevant literature that supports what I’ve said, having been accused at PrawfsBlawg (by an anonymous blogger, although I think I know who he is owing to a few well-worn expressions he used in his polemic against me: i.e., a well-known professor in the legal blogosphere) of the “tiresome habit of crafting each blog comment into a relentlessly dull bibliography that does little more than try to invoke authority in the place of arguments.” While I don’t agree with either the accusation or characterization, it suggests to me that some folks are rather put off by learning of works they’ve yet to read and probably should, so at least this time ’round I’ll spare others of indulging in my “tiresome habit.”]

6.27.2008
at 8:40 am EST P.S. O'Donnell

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